South Carolina Supreme Court’s New Revisions To Rule 8 (Confidentiality) Of The South Carolina Alternative Dispute Resolution Rules

On or immediately after May 1, 2018, the South Carolina General Assembly will most probably have approved the South Carolina Supreme Court’s Order of January 31, 2018, making substantive and impactful revisions to Rule 8 of the South Carolina Alternative Dispute Resolution Rules (SCADR); and I believe, at least from my perspective, that the South Carolina family court practitioners should be aware that there may be certain “unintended consequences” resulting from these Rule 8 revisions.

SCADR Rule 8 is, and has been from its inception, the Rule governing the confidentiality of the mediation process.  Currently, Rule 8 begins by stating that “(C)ommunications during a mediation settlement conference shall be confidential”; and then the Rule moves forward from there.

The genesis for the “revised Rule 8” most probably came from the fairly recent case of Huck v. Avtex Commercial Properties, Op. No. 5500 (S.C. Ct.App. refiled on March 28, 2018), where one of the appellate issues focused on the appellant’s effort to disclose and introduce at trial a purported agreement which had been reached by the parties during their mediation; and in addressing that particular issue, the South Carolina Court of Appeals stated the following, in pertinent part:

“We find the trial court erred in denying Avtex’s motion to disclose settlement.  The documents referred to in Rule 8 are designed to protect any documents prepared for use by the mediator and the parties to the mediation itself.  Once the parties reach a settlement, documents prepared in conjunction with the settlement and release are not for the purpose of, or in the course of, mediation.  Rather, they are documents prepared in connection with the litigation and to bring the litigation to a close.  Rule 8 is designed to protect the communications made during the mediation itself and to protect the process.  The parties’ mediation agreement reinforces the rule and simply incorporates the same language.  The request for production of the settlement documents does not disclose confidential information from the mediation (i.e., it does not disclose or discuss information the parties utilized to reach the settlement).  Further, any confidential matters the parties do not want disclosed can be protected through court proceedings including confidential provisions.” (Emphasis added)

Our Supreme Court’s ordered revisions to SCADR Rule 8 are intended to offer more clarity (1) as to parameters of “confidentiality” during the “course of the mediation proceeding”, and (2) as to what can, will – or might – fall outside these “confidentiality parameters”.  And so with that stated, I would like to try and breakdown, section-by-section, the revisions to Rule 8 which will now govern the mediation process beginning around May 1, 2018, and I have tried to emphasize in bold lettering the “new revisions” from the current SCADR Rule 8, and then provide some brief “comments” regarding each of these revisions:

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How Do You Successfully Mediate Feelings – And Why Is “Validation” So Critical (And So Frequently Overlooked And Misunderstood By The Mediator)?

[Note to the reader: In 2010 I wrote much of what I’ve put into this particular post below, with the rather odd exception of my having failed to include “validation” as one of those “feelings” I was so often encountering as a family court mediator (and, most recently, as an early neutral evaluator).  However, over the years it has most often been validation which I have allowed to elude me, and which has created a significant hurdle in helping the parties reach a successful resolution of their litigation.  And so I thought it might be timely to revisit this particular subject, just to see if (and how) I had allowed my family court mediation practice to morph into its most current form.  Let me quickly add that for the many of us who have attended “mediation school” while becoming a certified family court mediator, our instructors use the word and the term, validation”, within the first 2 hours of an intensive 40-hour course.  So let’s just start there.]

“Validation” is defined as “the recognition or affirmation that a person or their feelings or opinions are valid or worthwhile”.  And …

“Mediation is the art of recovery.” (From “Family Court Mediation Training Program”)

Having practiced family law for over 44 years, I am well now into my 9th year as a fulltime family court mediator and an early neutral evaluator, and I have determined that, on many levels, alternative dispute resolution (either as a mediator or an early neutral evaluator) has presented me with my greatest professional challenge…and here’s why:

I retired from the South Carolina family court bench at the end of December, 2008, and in January, 2009, I “transitioned” into my mediation practice, convinced that I had enough experience in this area immediately to become a natural-born mediator.  I just knew I could settle every case by sheer force of will and experience.  Wrong…and big mistake.

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In Tribute To My Child

[To the reader: I wrote this “tribute” in December, 1999, and gave it to my children at Christmas of that year as a “stocking-stuffer”.  My children (a daughter and a son) were teenagers then and I’m pretty sure they would have preferred something more “cash-worthy” at that time.  Nevertheless, as a parent it was meaningful to me and heartfelt – and as the years have flown by the words have become even more meaningful to me … and I felt that perhaps some of you parents out there might enjoy taking a moment in time to read it.]

______________________________

IN TRIBUTE TO MY CHILD

There is a quiet, almost unspoken bond of devotion which a parent has for a child.  No one on earth knows the heart and soul of a child in the way a parent knows.

I adore my child.  And I remain just as adoring a parent as the day my child was born.  If truth be told, I am also in constant wonderment of my child as my child, day-by-day, grows older.  My child’s gentle spirit will remain strong; my child’s willingness to be caring is God-given; and my child’s creative and inquisitive personality is self-acquired.

Yet, as my child grows older, I can still search for and find in that face that same child which I have prayed for every day since my child’s moment of birth.  And I already miss my child … because just as a meandering stream carries a single leaf ever onward and away from its point of beginning, so does each passing day carry my child towards a life joined in spirit with, and yet separate from, mine.  Although I try to remember that we are all children, with some of us simply older than others, I also know that I shall be a parent forever, and my child shall always be my child.

I pray that my child always has a strong sense of home.  My child should always know and feel that the love of this parent is everlasting, timeless … and unconditional.

I write this in tribute to my child.

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Early Neutral Evaluation In The South Carolina Family Courts – Finding A New (Better) ADR Way Forward

I very recently had the privilege of successfully joining with two of my great friends (and former colleagues on the South Carolina family court bench), Joseph W. McGowan, III, and Robert E. Guess, in a joint venture – “Early Neutral Evaluation Services”, and we formally launched our professional business model on January 1, 2018.

However, before I provided you, the reader, with the specifics about our particular business model (we are using a “team concept” approach), I wanted to spend some time reminding all of us family law attorneys that for almost 6 years now – since April 30, 2012 – “early neutral evaluation” (ENE) has been “hiding among the South Carolina Alternative Dispute Resolution Rules“, and that once we are able to “deconstruct” (so as to better understand) these ENE rules and target the family court issues the ENE rules are/were intended to resolve, then my two colleagues and I remain absolutely convinced that, within the next 5 years, “early neutral evaluation” in the South Carolina family courts will be THE first choice of dispute resolution utilized by our State’s family court bench and bar.  Period.

In researching the history of “early neutral evaluation” in my own efforts to better understand (a) what it was, and (b) how we could utilize it, if at all, in the South Carolina Family Court system, I came across an excellent article in FindLaw For Legal Professionals, entitled “Neutral Evaluation: An ADR Technique Whose Time Has Come”.  I found this article hugely helpful to me and enlightening, and I wanted to share just a few of its excerpts (there were more than a “few”, and I would urge that you please read the entire article if you have the time).  Here they are (and I’ve taken some slight editorial license on the emphasis):

“Any dispute resolution process by definition brings a certain amount of ‘baggage’ to the table, generated by its very structure and purpose.  This structural ‘baggage’, like everything else in life, always has a plus and minus to it.  For example, the primary structural baggage which litigation and the trial bring to the table is the requirement that there be a winner and a loser. …

The baggage which arbitration brings to the table is similar: arbitration is an adjudicative process, where the win/lose hammer can be even more final than in classic litigation, and thus where the stakes can lead to nearly as much desperation, expense and insane results as a trial (it just happens a little bit more quickly, and you can drink coffee and eat donuts in the comfort of some attorney’s office while it happens to you). …

The baggage which mediation brings to the table is primarily emotional: mediation is avowedly a settlement process, where the parties have already, just by agreeing to engage in it, let down their guard a little bit as far as their ‘toughness’ about the ‘invincibility’ of their positions.  This aspect of mediation, i.e., the fact that by its very structure it requires the participants to acknowledge that they are there to settle the case, often presents such a psychological barrier that the technique never gets used until the parties are forced to use it …

Neutral evaluation, on the other hand, carries with it neither the settlement baggage of mediation, nor the adjudicative baggage of (trial and binding) arbitration.”

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Ashburn v. Rogers and SCDSS/CSD – The South Carolina 2017 Family Law Case Of The Year

Last  year I wanted to try and single out what I felt to be one of our South Carolina appellate courts’ published opinions which I believed to be of some significance for our State’s family court bench and bar and/or which, at least in my view, represented a unique use of our existing statutes, court rules, or Supreme Court orders (1) to achieve a successful outcome for that affected client, (2) to provide appellate court “clarity” to certain difficult and complex areas of family law, and/or (3) to perhaps add another, significant “arrow into the quiver” of the family court bar moving forward.

For 2016, I had selected the case of Noojin v. Noojin, which not only had a significantly interesting fact-pattern, but one which addressed in great detail a range of contempt of court-related and parental alienation-related issues; and which also provided our family court bar with a more defined “road map” on when and how to address these issues both with the client (in advance of trial) and at the trial of the case which involved these issues.

And with that brief background stated, I have selected as my “2017 South Carolina Family Law Case Of The Year” the case of Ashburn v. Rogers and SCDSS/CSD, S.C.Ct.App., Opinion No. 5505, filed August 2, 2017.

In Ashburn v. Rogers Beaufort attorney, Sharnaisha Naki Richardson-Bax, utilized and applied Rule 60(b)(5), SCRCP in a manner which ultimately opened the proverbial door for our appellate courts to revisit – and offer some clarity to – the legal doctrines of res judicata and collateral estoppel. [The Ashburn decision turned on the inequitable notion that once a putative father made an admission of paternity of a child who, it was subsequently determined, was not his child, then under these legal theories of res judicata and collateral estoppel, it was too late to challenge that admission.]

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Lessons For The Young Attorney – From An Old Attorney: Lesson No. 4 (Practicing Family Law In “Never-Never Land”)

“Never-never land

Meaning:  A utopian dreamland.

Origin:   The term ‘never-never land’ is now usually applied with a sense of dismissiveness – used when someone is dreaming unrealistically about a utopian future.”  …

Welcome back, my young colleague … but it’s been a while since I visited with you, and that’s been entirely my fault.  You see, I’ve been spending a great deal of time recently in “never-never land”, and, if you don’t mind, I’d like to share with you what I learned during my time there (I’ve often traveled there over my professional career, and I’ve learned many of these lessons the hard way).

Let’s start:

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Lessons For The Young Attorney – From An Old Attorney: Lesson No. 3 (Learning The Craft Of Practicing Law – From The Sledgehammer To The Scalpel)

Welcome back, my young colleague, and first answer this: when you stood inside the South Carolina Supreme Court on the day you were sworn in as an attorney, and when you then signed the formal “enrollment of attorneys” and received your certificate formally admitting you into the profession, did you read the certificate while still inside the Supreme Court building?  Have you ever read it?

Here’s how mine begins: “IT APPEARING unto us, That Barry Wayne Knobel has complied with the requirements of the Law of this State in respect to the admission of persons to practice as Attorneys in the Courts of this State, and is duly qualified to act as such….”

That was on November 3, 1973.  My certificate of admission was signed by the Chief Justice and the associate justices (all of whom have long since passed away); and I vividly remember that on that day I was wearing a black, pin-striped suit, white shirt and black tie with white polka-dots…and spit-shined shoes.  On that auspicious (at least for me) day I absolutely looked the part….but on that same day, and for very, very many days which followed that day, I most certainly did NOT have a clue as to where my legal “roads not taken” would eventually take me; and I didn’t know then whether my choice to become an attorney would become my lifelong “profession”, or my “career”, or my “craft”….or simply the way in which to make enough money to pay my monthly bills, including repaying my law school loans.

And on November 3, 1973, how could the Justices of the South Carolina Supreme Court, along with any of the other thousands of members of the South Carolina Bar Association possibly know that I was “duly qualified” to practice law along side them or in front of them, when I wasn’t at all sure that I was duly qualified (if truth be told – and as I write this – I’m still not so sure)?

Consequently, as we all did then and as brand new attorneys do now, I began practicing law with a sledgehammer.  Just slamming my way forward and throwing everything at the “most immediate problem at hand”.  I stretched out the Socratic Method like a huge rubber band – arguing my “legal points” based on what little tidbits I could glean from law books while blending those tidbits into my clients’ “versions of the truth”, all the while trying to sound and act like I knew what I was talking about…but while facing much more seasoned and polished attorneys who were constantly “schooling me” on the finer (and most often the correct) points of law and facts involved in the case.  And I had my share of those “seasoned attorneys’ tire tracks” running up and down my black pin-striped suit.

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Lessons For The Young Attorney – From An Old Attorney: Lesson No. 2 (Is This Really How You’re Supposed To Practice Law?)

To my young colleague: thank you for dropping back in for “Lesson No. 2″….hop in and take a ride with me, and I’ll tell you this brief story, and all you have to do is just listen quietly.

After graduating from law school I knew that I wanted to return to my hometown (Anderson) to begin practicing law because after 7 straight years of living there, Columbia was too hot for me in the summer, too cold in the winter, and already overcrowded with attorneys, and I knew that I could be a great “fit” for the larger, mainline law firms in Anderson.  I was wrong about that.

I first interviewed with the largest law firm in Anderson at the time (all of them were excellent attorneys, and brilliant, who universally enjoyed great area, even statewide, reputations).  All the partners gathered around their conference room table to interview me, and the most senior partner began by asking me two questions: what areas of the law practice were the most interesting to me, and what was my graduating grade point average from law school?  WHAT!!!!  And so with that, after I answered I believed I could be a “pretty good” TRIAL attorney and gave them my GPA (I’ll never reveal it here, so let’s just say it was high enough to let me graduate from law school), the interview was over!  Record time. They thanked me for meeting with them, and they were gracious enough to let one of the partners “show me around” their law library and walk me to my car.

Four months, 2 more “live” interviews, and around 8 “cold calls” to Anderson attorneys later, in December, 1973, I was hired as an associate by a two-man partnership at an annual salary of $9,000.  Both attorneys were excellent (the “senior partner” was the Circuit Solicitor at the time, and the “junior partner” was also a terrific trial attorney, but they had completely different and compelling personalities and work ethic.  And in the time I was with them, they each became my mentors and my tor-mentors.  But to their everlasting credit, they instilled in me the early awakenings of what would become my love for the practice of law…and here’s why:

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Lessons For The Young Attorney – From An Old Attorney: Lesson No. 1

My intent is to take my time and really try to put some thought and effort into writing a series intended to focus on an “audience of just one” – on some young attorney out there who has practiced law for less than 5 years and who, even now, is wondering if he or she made the right career decision by choosing law school over, well, any other post-college career path.  And I’m driven to do this because, after now practicing law for almost 44 years, there have been so many times in my professional life where I have wondered if I made the right decision….and because the older one gets the more melancholy one becomes, I realize that my “professional clock” is winding down, and that the only “footprint” I can possibly leave is to share my wisdom (and there is very little wisdom) and my experience (but there is a great deal of experience, both good and bad) with the youngest of my colleagues.

I plan to include some anecdotal stories from my earliest days of practicing law up to the present time – but I promise to try and not bore you too much with these tales (and I certainly don’t intend on making this a “diary”, because then I would bore myself); and I will offer you only the ones which I hope will help you avoid the pitfalls and problems and agonies I experienced going through them (and maybe you would have even shared some of these exact same “experiences” with me).  And I will then give you a number of suggestions and lessons and “maxims” and ideas which I hope will keep you centered and moving forward in this most difficult of professions.

Let’s start.

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Noojin v. Noojin – The 2016 South Carolina Family Law Case Of The Year

If you practice family law in South Carolina, then you may agree that it is a rare occasion when our appellate courts publish an opinion during any given calendar year which changes the trajectory of how we practice family law.  More often than not, a published opinion tends to validate our collective understanding of how we are to micromanage various aspects of the clients’ cases moving forward (such as, the Wannamaker v. Wannamaker, 395 S.C. 592, 719 S.E.2d 261 (Ct.App.2011) case, which recognized the family court judge’s discretion in valuing a spouse’s retirement account based on that party’s actual contributions into the account rather than valuing it based on a “present value” computation of a forensic expert; or perhaps the Roof v. Steele, 413 S.C. 543, 776 S.E.2d 392 (Ct.App.2015) or Woods v. Woods, S.C.Ct.App. Opinion No. 5430, filed July 27, 2016 cases, which (once again) discussed the various factors applicable to an alimony modification case; or perhaps the Buist v. Buist, 410 S.C. 569, 766 S.E.2d 381 (2014) case, which addressed the factors in awarding – or challenging the award of – attorney’s fees).

However, there are also those occasions when our appellate courts publish opinions which were impactful enough to have forced us to rethink, refocus, and reprocess (1) the way in which we advised clients in the preparation of their family court case, (2) the way in which we prepared the evidence and testimony for the trial of those cases, and (3) the way in which we actually conducted ourselves inside the courtroom at motion hearings or during trial.  And the notion that there is, most probably, a trajectory-changing “case of the year”  lead me down a path of reviewing the various family law opinions published by our South Carolina Supreme Court and South Carolina Court of Appeals from 2011 through 2016, and I came up with my own personal “list of favorites” below (you have the absolute right to disagree with my selections…and choose your own).

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